On March 3, People United for Privacy Foundation joined a diverse coalition of civil liberties, free speech, and privacy advocates urging the Department of Justice (DOJ) to withdraw proposed amendments to regulations of the Foreign Agents Registration Act (FARA). The proposed changes threaten fundamental First Amendment freedoms by expanding the already vague and overbroad provisions in FARA.

As the letter explains, FARA imposes burdensome registration, disclosure, and record-keeping requirements on individuals and organizations engaged in a broad range of activities. The law’s massive scope, which encompasses not only foreign government lobbying but also activities like sharing information or organizing events, makes it ripe for abuse by regulators targeting First Amendment-protected advocacy. Indeed, this has long been a major problem with the law.

“During the McCarthy era in the 1950s, the Justice Department prosecuted W.E.B. DuBois under the Act for allegedly circulating an anti-nuclear weapon petition at the ‘request’ of a French anti-war nonprofit,” the letter explains. More recently, the DOJ “required a church in Pennsylvania to register for printing out banners at the ‘request’ of congregants coming from Europe for the March for Life Rally. According to the Department, in printing out the banners the church acted as a ‘publicity agent’ of the foreign congregants – a registrable activity under FARA.”

When merely acting at the ‘request’ of a foreign principal triggers extensive regulations, First Amendment rights are chilled. For instance, FARA could theoretically apply to an American nonprofit that simply responds to an information request from an overseas human rights group, forcing its registration as a “foreign agent.” That nonprofit would then face numerous invasive reporting requirements concerning its funding and activities, including an obnoxious disclaimer requirement on anything it produces that warns viewers that “this material is distributed… on behalf of [a named foreign principal].”

FARA’s vague provisions also create excessive discretion for enforcement. As the letter warns, the “proposed regulations fail to address vague provisions in FARA that can chill constitutionally protected activity and instead aggravate the Act’s ambiguity, providing the Justice Department undue discretion that can be used in a politicized manner.” To her credit, Attorney General Pam Bondi recently directed DOJ prosecutors to rein in their use of the law, acknowledging its potential for abuse.

Beyond its impact on free speech, FARA also threatens privacy in association – a fundamental right that enables individuals and organizations to freely engage in advocacy without harassment or retaliation. The law requires those deemed foreign agents to disclose extensive information about their activities, funding, and communications. The coalition letter notes that these requirements have deterred some nonprofits from engaging in entirely lawful advocacy, simply to avoid the burdens and stigma associated with FARA registration.

DOJ’s proposed changes to FARA would exacerbate the law’s problems, as some commenters have separately noted. The Department’s proposed two-part test for determining exemptions “is vague and creates confusion about what activity qualifies for this important exemption,” the letter explains. Furthermore, the DOJ’s failure to define or clarify key terms such as “political consultant” or “agent of a foreign principal” leaves nonprofits and advocacy groups in a precarious legal position, unsure whether their work might trigger FARA’s heavy-handed requirements.

People United for Privacy Foundation recognizes the importance of preventing foreign meddling in American politics. Empowering federal agencies to impose devastating and unconstitutional burdens on American citizens and the nonprofit causes they support, however, is unacceptable. DOJ must continue to rethink its approach to FARA to ensure that it upholds, rather than undermines, the fundamental freedoms enshrined in the First Amendment.